J v B (Ultra-Orthodox Judaism: Transgender) [2017] EWFC 4 Family Court, 30 January 2017, Peter Jackson J

In categories:

The parents were both members of the North Manchester Charedi Jewish community; their marriage was an arranged marriage; they had five children, a boy aged 12, twins (a boy and a girl) aged 8, a boy aged 5 and a girl aged 2. The older children all attended single-sex faith schools. The marriage ended when the father left home to live as a woman. Before the father left, she explained to the eldest child that she was unhappy and wanted to leave; her gender issues were not discussed with the child but she did once allow the child to see photographs on her mobile phone of male friends dressed as women. The child’s schoolwork and behaviour deteriorated following this and he began to receive counseling through his school. The mother told the children that the father was in London and ‘not well’. The eldest child’s counselor told him about what the father was doing to change gender, and reported that the child was very shocked and upset and initially did not believe the news.

The father now lived as a woman (although she had not yet had surgery) and had no contact with the children at all. The father argued that she should be sensitively reintroduced to the children, who should be helped to understand her new way of life and allowed to enjoy regular and significant contact with her outside the community, which was vehemently opposed to such contact and to the life that the father was living. The mother, having been opposed to any contact, now accepted that the children should have indirect contact with the father three times a year but continued to oppose direct contact of any kind, claiming that this would lead to them being ostracised by the community to the extent that they might have to leave it. The children’s guardian and the expert witness concluded by a narrow margin and with evident reluctance that the benefits to the children of resuming contact with the father would be outweighed by the harmful community reaction that would be visited upon the family; they therefore recommended indirect contact only, with a course of life story work to explain the father’s departure to the children.

The mother had raised concerns about statements allegedly made by one of the younger children. These had been investigated by the police and social services: the police had taken no action against the father to date; the local authority assessment had closed the case on the basis that there were no concerns because the father was not having any contact, but that if such contact began, a comprehensive risk assessment would be needed.

The three schools attended by the children had initiated a community meeting to discuss the community’s concerns associated with transgender issues. The meeting did not address the consequences for the children of the loss of their father. The father was not involved and her concerns or interests were ignored in the discussions at that meeting. After reading communications written by two of the headteachers and by the eldest child’s counselor, the father sent emails complaining of persecution and suggesting she was being encouraged to commit suicide; she notified them of complaints to MPs, Ofsted and the counsellor’s professional body. A What’s App message was posted by a member of the community asking for people to pray. The father had not yet given the mother a get, fearing that the mother would move to Israel.

The High Court judge ordered indirect, but not direct contact, between the father and the children.

This was a very troubling case. These children were caught between two apparently incompatible ways of living, led by tiny minorities within society at large. Both minorities enjoyed the protection of the law: on the one hand the right of religious freedom, and on the other the right to equal treatment. It was painful to find these vulnerable groups in conflict.

A great deal of time had been spent at this hearing on consideration of the laws and customs of the ultra-Orthodox community. However, despite its antiquity, Jewish law was no more than 3,500 years old, while gender dysphoria would doubtless have existed throughout the 120,000 years that homo sapiens had been on earth. Both sides of the question must therefore receive careful attention. Faced with this intractable problem, it was not for the court to judge the way of life of the ultra- Orthodox Jew or of the transgender person. The court applied the law; in this case its task was to identify the outcome that best upheld the children’s welfare while minimizing, so far as possible, the degree of interference with the rights of all family members.

Here, the best possible outcome would be for the children to live with their mother, grow up in the community, and enjoy a full relationship with their father by regular contact. The worst outcome would be for the mother and children to be excluded from the community. The question was whether, in striving for the best outcome, the court would instead bring about the worst.

Having considered all the evidence, the court was driven to the conclusion that there was a real risk, amounting to a probability, that these children and their mother would be rejected by their community if the children were to have face-to-face contact with their father. The court had begun the hearing with a strong disposition to find that a community described by its leader as “warm, close and supportive” and living under a religious law that “highlights integrity, respect for others, justice and peace” could tolerate (albeit without approval) these children’s right to and need for a relationship with their father. However, the evidence given during the hearing included actual examples of ostracism of children in other circumstances.

This conclusion did not depend upon any view of what Jewish law was in relation to transgender, but upon what the community was likely to think it was and act upon. It might be that the humane and progressive views of other Jewish leaders would one day gain acceptance in the ultra-Orthodox communities, but in the present day the community in which the children lived and went to school would, rightly or wrongly, defer to the stance described by its leader. Specific examples showed the difficulties that arose when a parent simply left the ultra-Orthodox community, without the compounding features found in this case. 
Specific examples showed the lengths to which the community was prepared to go, regardless of the justice of the matter or the welfare of the young people. These were clear examples of discrimination and victimisation (there was no other apt description) in cases that did not raise anything like as problematic a challenge to community attitudes as the present case. 
There was a consistent account from all those within the community that it would behave in this way and this was accepted by the father; her thesis was that this behaviour could be managed or made to change. There was, to say the least, evidence that the practices within the community, and in particular its schools, amounted to unlawful discrimination against and victimisation of the father and the children because of the father’s transgender status. However, the fact that the community’s practices might be unlawful did not mean that they did not exist. The court had been particularly impressed by the evidence of a foster mother who had fostered some of the children previously ostracised by this community, an informed outsider, who compellingly described the reaction of the community to situations of which it disapproved. There was no evidence that any person in a position of authority or influence within the community wished to challenge the behaviour of its members, still less that significant change could be expected within these children’s timescale. In these circumstances, there was no real prospect of a court order bringing about a beneficial alteration in the attitude of the community towards this family, even to the extent of some relatively limited normalisation of approach. This must be a subject for regret, not only for this family, but also for others facing these issues in fundamentalist communities, for whom this would be a bleak conclusion. However, these considerations could not deflect the court’s focus from the welfare of these five children.

In balancing the advantages and disadvantages of the children being allowed to see their father, the court would apply the law. Some witnesses in the proceedings had asserted that gay or transgender persons had made a lifestyle choice and must take the consequences. The law, however, recognised the reality that one’s true sexuality and gender were no more matters of choice than the colour of one’s eyes or skin. It had also been said that transgenderism was a sin. Sin was not valid legal currency. The currency of the law was the recognition, protection and balancing out of legal rights and obligations. In this case, to be recognised and respected as a transgender person was a right, as was the right to follow one’s religion. Likewise, each individual was under an obligation to respect the rights of others, and above all the rights of the children. The court also rejected the bald proposition that seeing the father would be too much for the children. Children were goodhearted and adaptable and, given sensitive support, these children could adapt considerably to the changes in their father. The truth was that for the children to see their father would be too much for the adults within the children’s community.

The sad reality was that the court could see no way in which the children could escape the adult reaction to them enjoying anything like an ordinary relationship with the father. In the final analysis, the gulf between these parents – the mother within the ultra-Orthodox community and the father as a transgender person – was too wide for the children to bridge. They would be taught one thing in their daily lives and asked to do the opposite on repeated, conspicuous forays into the outside world, which they would have to keep quiet about afterwards. The children, and the mother on whom they depended, would have no effective support to deal with any of this: on the contrary, they would face suspicion or outright opposition from every quarter. The likely result was that their individual and collective well-being would be undermined to the point where their ability to remain in the community would be put at risk, or at the very least placed under permanent and severe strain, with “a negative impact on how they function in the widest possible sense both now and in the future”.

This was not a case about whether children should or should not be brought up according to ultra-Orthodox principles. These parents had decided to bring up their children according to the narrow ways of the community, and they continued to agree about this. That being the case, the priority must be to sustain the children in the chosen way of life, preserving their existing family and social networks and their education. Children had the right to preserve their identity (UNCRC Art.8), something that was a matter of particular pride to these children. Contact carried the clear risk that the children and their mother would become the next casualties in a collision between two unconnecting worlds. The father had already experienced the consequences of that collision, and no one knew better than she did how very painful they could be.

The court concluded with real regret, knowing the pain that it must cause, that the father’s application for direct contact must be refused; it would instead make an order for indirect contact four times a year for each child, perhaps coinciding with their birthdays, and with Pesach, Sukkot and Hanukkah. The court would make a Family Assistance Order for 12 months, addressed to Cafcass, to support the introduction of indirect contact and oversee the process of creating the narrative.

This outcome was not a failure to uphold transgender rights, still less a “win” for the community, but represented the upholding of the rights of the children to have the least harmful outcome in a situation not of their making.

In the light of the response of the schools to this family’s situation, the court would send a copy of this judgment to the Minister of State for School Standards at the Department for Education. If change was required, responsibility must fall on the shoulders of the schools, the community and the state, and not on the heads of young children.

Assessments of the kind conducted by the local authority in this case ducked the issue, were regrettably common and were of no real value to the children and families concerned. Because of the outcome, at a late stage in the proceedings directions had had to be given to gather information about the sexual abuse investigation from all sources. Having now reviewed the child’s ABE interview there was no credible evidence that the father had behaved in a sexual manner towards any of the children. The statements that the child in question had made were weak and contradictory and the process of investigation had been unsatisfactory from start to finish.